Emory Law Journal

Foreword

Emory Law Journal | 64 Emory L.J. 1669 (2015)

In just a few weeks, when the Court hands down what will no doubt be a long anticipated and highly contentious decision in Obergefell v. Hodges, the Court will answer whether the Fourteenth Amendment requires states to license marriages for same-sex couples. While many believe the Court is poised to answer that question affirmatively, assuming it will, it is far less clear how expansive or limited the decision’s holding will be or what implications will flow from its rationale. At oral argument, Justice Alito pressed the petitioners as to the logical implications of a holding in favor of same-sex marriage, asking, “Suppose we rule in your favor in this case and then, after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them?” Whether a right to polygamous marriage should be recognized as a matter of constitutional or statutory law is a question that we editors of the Emory Law Journal are disinclined to answer ourselves. But we do believe this important question is one worth asking, and Obergefell certainly gives new energy to that conversation. And while questions surrounding polygamy are not new to the academic legal literature, there remains plenty of room for further inquiry and dialogue. Accordingly, in this paper symposium, we have collected a number of articles and essays by leading and emerging scholars to tackle the question of polygamy and its many attendant issues.

Why Two in One Flesh? The Western Case for Monogamy over Polygamy

John Witte, Jr. | 64 Emory L.J. 1675 (2015)

Questions about polygamy are likely to dominate Western family law in the next generation. Two generations ago, contraception, abortion, and women’s rights were the hot topics. This past generation, children’s rights and same-sex rights have dominated public deliberation and litigation. On the frontier of Western family law are hard questions about extending the forms of valid marriage to include polygamy and extending the forums of marital governance to include religious and cultural legal systems that countenance polygamy. This Article analyzes the 1,850 year tradition of Western laws against polygamy and the growing constitutional and cultural pressures to reform these laws today. I show how the traditional Western cases against polygamy and same-sex unions used strikingly different arguments drawn from the Bible, nature, rights, harm, and symbolism. I conclude that, because these arguments are so different, Western nations can responsibly hold the line against polygamy, even if they choose to accept same-sex marriage and its accompanying norms of sexual liberty, domestic autonomy, equality, and nondiscrimination.

Should Civil Marriage Be Opened Up to Multiple Parties?

Martha Bailey & Amy Kaufman | 64 Emory L.J. 1747 (2015)

In this Essay, we argue that civil marriage should not be opened up to multiple parties. Our focus is on civil, not religious, marriage, and we address polygamy in general, rather than any particular form of it. We highlight the important distinction between opening up civil marriage to multiple parties on one hand and recognizing valid foreign polygamous marriages on the other. We contemplate how a country can coherently recognize valid foreign polygamous marriages, while at the same time decline to open up civil marriage to multiple parties. We distinguish decriminalization of polygamy, which we advocate, from opening up civil marriage to multiple parties. We then explain why we believe the rights of children should be a non-issue in deciding whether civil marriage should be opened up to multiple parties. We consider the state’s continuing interest in marriage in the context of changing social norms and legal developments and conclude that there is a compelling state interest in preserving and supporting civil marriage as a monogamous institution.

Polygyny and Violence Against Women

Rose McDermott & Jonathan Cowden | 64 Emory L.J. 1767 (2015)

This Essay examines the link between polygyny, or one man who is married to multiple woman, and the physical security of women and children, and political rights and civil liberties using a unique dataset of 171 countries drawn from the WomanStats project. Controlling for the independent effects of Gross Domestic Product and sex ratio, we find statistically significant relationships between polygyny and an entire downstream suite of negative consequences for men, women, children, and the nation-state, including the following outcomes: discrepancy between law and practice concerning women’s equality, birth rate, rates of primary and secondary education for male and female children, difference between males and females in HIV infection, age of marriage, maternal mortality, life expectancy, sex trafficking, female genital mutilation, domestic violence, inequity in the treatment of males and females before the law, defense expenditures, and political rights and civil liberties. Elevated frequency of polygynous marriage thus tends to be associated with increases in behavioral constraints and physical costs experienced by women and children in particular but also exerts effects that redound poorly to the majority of poor men as well.

Maura I. Strassberg | 64 Emory L.J. 1815 (2015)

In Brown v. Buhman, the recent challenge to the Utah law criminalizing polygamy brought by the stars of the reality television show Sister Wives, a federal district court determined both that strict scrutiny was required and that strict scrutiny could not be satisfied. A significant factor in this result was the state’s failure to mount a strong defense of the law, assuming that it could rely on long standing polygamy precedents such as the United States Supreme Court decision in Reynolds v. United States and more recent Tenth Circuit and Utah Supreme Court decisions to justify limiting scrutiny to rational basis and to provide legitimate reasons for the criminalization of polygamy. However, the State could have taken advantage of a then just released Canadian opinion, Reference re: Section 293 of the Criminal Code of Canada (Reference), to explain the real and expansive harms of polygamy. The Reference court undertook an exhaustive examination of the impact of polygamy on women, on children, on men, and on society, utilizing empirical evidence, expert reports, personal anecdotes, and a wide range of “Brandeis Brief” materials. This Article argues that the broad range of social and individual harms of polygamy identified in Reference provide a compelling state interest sufficient to withstand the strict scrutiny deemed necessary by Brown.

The Most Comprehensive Judicial Record Ever Produced: The Polygamy Reference

BJ Wray, Keith Reimer & Craig Cameron | 64 Emory L.J. 1877 (2015)

In the fall of 2010 and the spring of 2011, the Chief Justice of the Supreme Court of British Columbia presided over an unprecedented proceeding in Canadian legal history—a “reference” hearing conducted at the trial court level into the constitutionality of Canada’s criminal prohibition of polygamy. The authors are legal counsel at the Department of Justice and were part of the legal team that successfully defended the constitutionality of the prohibition on behalf of the Attorney General of Canada. This Essay discusses various aspects of the litigation, including the uniqueness of the proceeding, the voluminous evidentiary record it generated, the positions taken by the primary participants, and the Chief Justice’s decision. The record before the Chief Justice provided an unparalleled overview of the impact of polygamy on individuals, communities, and nation-states and led to his ultimate conclusion that polygamy, as a marital institution, is inherently harmful.

The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions

Jonathan Turley | 64 Emory L.J. 1905 (2015)

In this Article, Professor Turley explores the concept of social harm in the context of two recent cases in the United States and Canada over the criminalization of polygamy. The cases not only resulted in sharply divergent conclusions in striking down and upholding such laws respectively, but they offered strikingly different views of the concept of harm in the regulation of private consensual relations. Professor Turley draws comparisons with the debate over morality laws between figures like Lord Patrick Devlin and H.L.A. Hart in the last century. Professor Turley argues that the legal moralism of figures like Devlin have returned in a different form as a type of “compulsive liberalism” that seeks limitations on speech and consensual conduct to combat sexism and other social ills. The alternative, advocated in this Article, is the adoption of a Millian approach to harm that requires a more concrete form of injury or harm to justify individual choice. In what he calls the “Loadstone Rock” of constitutional analysis, the definition of harm continues to dictate the outcome of the conflict between individual choice and social mores.

Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage

Ronald C. Den Otter | 64 Emory L.J. 1977 (2015)

This Article takes seriously the substantive due process and equal protection arguments that support plural marriage (being able to marry more than one person at the same time). While numerous scholars have written about same-sex marriage, few of them have had much to say about marriages among three or more individuals. As progressive, successful, and important as the Marriage Equality Movement has been, it focuses on same-sex marriage at the expense of other possible kinds of marriages that may be equally worthwhile. The vast majority of Americans still do not discuss plural marriage openly and fairly, as if the topic were taboo. One of the goals of this Article is to convince readers that marriage in the future could be a much more diverse institution that does a better job of meeting individual needs. After all, one size may not fit all. Unfortunately, too often, scholars reduce plural marriage to the exploitation of women and the abuse of children. This approach makes it too easy to dismiss the possibility that a plural marriage might work better than the alternatives for at least some individuals in some circumstances.

The Evolution of Plural Parentage: Applying Vulnerability Theory to Polygamy and Same-Sex Marriage

Stu Marvel | 64 Emory L.J. 2047 (2015)

Much of the legal debate surrounding the challenge to “traditional” heterosexual marriage has involved questions of liberty, discrimination, and equal treatment. Similar moves have now been made by advocates for polygamous marriage, indicating that polygamous families may be on track to follow in the rainbow contrails of same-sex marriage. This Article argues that such an evolution is indeed likely, but for different reasons than commonly held. Instead, it applies the emerging paradigm of vulnerability theory to a recent suite of polygamy and same-sex marriage rulings, with particular focus on the figure of the “vulnerable” child. At the same time, this Article will also consider the legal and social consequences of the mechanics of reproduction within both same-sex and polygamous families. It will ask what the lessons of same-sex parents using assisted reproductive technology (ART) might offer in thinking through the future of polygamy. Plural forms of parentage indicate that we are in a period of marriage evolution, wherein multiple adult caregivers may have a potential claim on the right to parent a given child. These contemporary struggles are already transforming the legal landscape in other countries. The vulnerability analysis will shed light on why it is only a matter of time before they also shift the two-parent mode of caretaking in the United States, given the overlapping vulnerabilities of dependent children, the state, and the institution of marriage itself.

Vulnerability and the Institution of Marriage

Martha Albertson Fineman | 64 Emory L.J. 2089 (2015)

Since 2007, the Vulnerability and the Human Condition Initiative at Emory has been developing the concepts of vulnerability and resilience and the idea of the “vulnerable subject” as the only appropriate legal subject around which to build law and policy. In the place of an idealized construct based on autonomy, independence, and self-sufficiency—our present liberal legal subject—the vulnerability paradigm recognizes that every actual adult human being, no matter how strong and independent he or she may seem, is both presently and has been in the past reliant on others and on social institutions. The idea of a universal “vulnerable subject” to replace the universal liberal subject thus raises new issues, poses different questions, and opens up new avenues for critical and theoretical exploration. Within this emerging body of scholarly inquiry, Stu Marvel’s Article addresses polygamy, same-sex marriage, and plural parentage by examining the legal response to multiple vulnerable subjects, primarily and most significantly children and the institution of marriage or the marital family.

Jonathan A. Porter | 64 Emory L.J. 2093 (2015)

Some Americans are changing the way they pair up, but others aren’t satisfied with pairs. In the last few years, while voters, legislatures, and judiciaries have expanded marriage in favor of same-sex couples, some are hoping for expansion in a different dimension. These Americans, instead of concerning themselves with gender restrictions, want to remove numerical restrictions on marriage currently imposed by states. These people call themselves polyamorists, and they are seeking rights for their multiple-partner relationships. Of course, polygamy is nothing new for the human species. Some scientists believe that polygamy is actually the most natural human relationship, and history is littered with a variety of approaches to polygamous relations. Only in recent centuries has society’s preference for monogamy developed, yet that preference has proven robust, as most Western governments vehemently support monogamy as the only marital option. This Comment explores polygyny and polyamory in the United States and walks through the traditional legal, political, and sociological arguments for and against polygamy. While some claim the absence of coercion leaves the state without a compelling reason to ban polygamous marriage, this Comment disagrees and finds several compelling reasons for states to favor monogamy.